Witelson v. Jamaica Estates Holding Corp.

40 A.D.3d 284, 835 N.Y.S.2d 179

Opinion

Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered October 24, 2006, which, to the extent appealed from, denied the cross motion by plaintiffs Witelson and Pitterman for summary judgment against defendants Jamaica Estates Holding and Solomon Holding to foreclose on a mortgage, unanimously affirmed, with costs.

Even assuming the cross motion was timely filed, it was properly denied. A prima facie showing to warrant summary judgment foreclosure of a mortgage requires the movant to establish the existence of the mortgage and mortgage note, ownership of the mortgage, and the defendant’s default in payment (Campaign v Barba, 23 AD3d 327 [2005]). These plaintiffs do not have a note, have not demonstrated ownership of the mortgage and have not produced competent evidence of a default. Indeed, their witness was unable to state definitely that these plaintiffs even had an interest in the mortgage on which they sought to foreclose.

We have considered appellants’ other arguments and find them unavailing. Concur—Mazzarelli, J.P., Saxe, Sullivan, Nardelli and Gonzalez, JJ.